I've had some time to take a breather tonight and I want to draw attention to something important in one of the latest stories we worked on with a team of excellent Swedish journalists from Uppdrag Granskning — an investigative unit that operates as part of Sweden's national public broadcaster SVT.
We worked on several stories with Uppdrag Granskning in the lead up to an hour-long documentary, aired Wednesday, about Sweden's major role in the global surveillance nexus that is led by the United States, the United Kingdom, and the other members of the so-called Five Eyes group — Australia, Canada, and New Zealand.
As we reported, the documents reveal how Sweden has become a key partner for the US and the UK, and top-secret agreements have been made in the last decade that bolster Sweden's spying role like never before.
But aside from these crucial details, which are hugely important for Swedish citizens to be informed about, I'd like to highlight here one smaller piece of information that we reported that I think is highly notable.
Earlier this year, it was disclosed that UK spy agency GCHQ was involved in hacking into the Belgian telecom company Belgacom's computer systems in order to covertly gather intelligence on unknown targets. But what is interesting is that, despite being involved in using these hacking methods, GCHQ has been worrying behind the scenes about their legality.
One of the Snowden documents we revealed on the Uppdrag Granskning documentary — dated circa April 2013 — shows the NSA describing a so-called 'Quantum' hacking initative that GCHQ was involved in at a "proof-of-concept" level. However, the document notes:
Continued GCHQ involvement may be in jeopardy due to British legal/policy restrictions, and in fact NSA’s goal all along has been to transition this effort to a bilat with the Swedish partner. [Emphasis added.]This struck me because, last year, I uncovered a document showing something similar. In obscure technical standards meetings with telecom companies about implementing new surveillance capabilities, GCHQ representatives from a little-known unit of the agency called the National Techical Assistance Centre were voicing the same concerns about hacking techniques.
At meetings held between 2010 and 2011 in Estonia and Italy, at which a GCHQ representative was present, the UK was said to be anxious about the legality of performing a so-called 'man-in-the-middle' attack to covertly hack and eavesdrop on communications:
An additional concern in the UK is that performing an active attack, such as the Man-in-the-Middle attack proposed in the Lawful Interception solution...may be illegal. The UK Computer Misuse Act 1990 provides legislative protection against unauthorised access to and modification of computer material. The act makes specific provisions for law enforcement agencies to access computer material under powers of inspection, search or seizure. However, the act makes no such provision for modification of computer material. A Man-in-the-Middle attack causes modification to computer data and will impact the reliability of the data.This could not be clearer. The UK's position was that it might be unlawful for authorities to hack a computer in order to monitor communications and/or exfiltrate data. That was the position in 2010/11, and I think the same concern is what is being referenced in the 2013 NSA document when UK "legal/policy restrictions" are mentioned.
Yet despite this concern — and this is perhaps the most important point — GCHQ has marched ahead with its participation in clandestine surveillance operations that involve hacking. The Belgacom case is a specific example, but the NSA documents on Sweden illustrate that Belgacom was not an isolated case. GCHQ was (and likely continues to be) involved in a program called WINTERLIGHT that explicitly involves trying to infect hundreds of targeted computers with so-called 'implants' of malware. GCHQ even operates a covert computer server that it uses to help infect targets with the malware, likely by masquerading as legitimate websites such as LinkedIn, as previous reports have suggested. These covert servers are mentioned in one of the NSA documents on Sweden, dated April 2013, revealed by Uppdrag Granskning:
Last month, we received a message from our Swedish partner that GCHQ received FRA [Swedish spy agency] QUANTUM tips that led to 100 shots, five of which were successfully redirected to the GCHQ server.So, the question here is: how can this be legal? If GCHQ was previously concerned that performing active hacking attacks may be unlawful under the UK's Computer Misuse Act, then how has that situation been resolved? Has the agency been granted immunity to perform these operations? If so, who granted the immunity? Alternatively, has the UK government, with zero public debate and under cover of total secrecy, produced a classified interpretation of the law aimed at justifying and rendering lawful the use of this clandestine hacking technique?
Another very intriguing theory I have considered is that GCHQ lets one of the other agencies do the "dirty work" — the part of the hack that would illegal under UK law. The NSA may deploy the malware, for instance, while GCHQ plays a lesser role by merely facilitating the attack by hosting the server — but still reaping the benefits (i.e. it gets access to the intercepted data). Having spent countless hours now looking at the Snowden documents, it certainly appears to me that this is something that occurs — that the spy agencies circumvent their domestic laws by allowing partner agencies to do things that they could not do themselves.
Either way, GCHQ's clear and undeniable role in Quantum hacking attacks raises hugely significant legal questions and it is remarkable to me — but perhaps not totally surprising — that the blundering British parlimentarians who are supposed to hold the agency to account have thus far failed to raise any of these key issues.